Page:Federal Reporter, 1st Series, Volume 3.djvu/560

 BAENARD V. HABT. 553 �John C. Gray, Jr., John C. Eopes and William Caleh Loring, for demandants. �Thornton K. Lothrop and William S. Hall, for tenants. �Nelson, D. J. This is a writ of entry by the assignees in bankruptcy of the Boston, Hartford & Erie Eailroad Com- pany, against the trustees, under a mortgage known as the Berdell mortgage, on the road of the company, to secure land not included in the mortgage. The tenants pleaded nul disseisin. Judgment bas been rendered for the demandants for the parcel of land in Boston known as French's wharf, described in the first count of the writ, and for the tenants on ail the other counts. The case was then referred toan assessor to determine the mesne profits due to the demand- ants for the detention of French's wharf. The assessor bas made bis report, and bas found that the mesne profits from August 17, 1871, the time wben the tenants entered into pos- session, to March 15, 1873, the date of the writ, were $13,- 413.50, and that the mesne profits since the date of the writ were $25,283.51. That the demandants are entitled to the latter sum is not denied. The only question now before the court is whether they are entitled to the former sum — that is, the mesne profits which accrued after the tenants' entry, and before the bringing of this action. �On July 20, 1 870, a bill in equity was filed in the supreme judicial court of Massachusetts to foreclose the Berdell mort- gage; and on August 20, 1870, receivers were appointed in that suit, who took possession of ail the property of the com- pany, whether covered by the mortgage, or not including French's wharf. During the pendency of the foreclosure suit the railroad company, upon a petition filed October 20, 1870, was adjudged bankrupt by the United States district court for this district. On May 7, 1871, the state court passed a de- cree that the mortgage should be foreclosed, and that the receivers should deliver into the possession and control of the tenants, as trustees under the mortgage, ail the property in their hands and possession, or under their management and control. On the seventeenth of August, 1871, the receivers delivered, and the tenants entered into possession, under the- ����